Excerpt: - - a contention of this sort appearing as a bolt from the blue for the first time at the time of arguments before the appellate court cannot be accepted and the accused cannot be allowed to be taken by surprise like that. these pulses when its outer covering is removed will be articles of food as well as products of agriculture. what was decided in that case was only that rice after dehusking paddy as well as vadapparippu and thuvarapparippu after removing their outer covering are primary food because they retain their natural form before undergoing the process of dehusking. it is clear from the above definitions as well as from common knowledge that butter whether it is table butter or deshi butter is only a product manufactured from milk by human agency......that milk of a cow which was reared on the soil and which got its sustenance therefrom alone could form primary food and milk secreted from a cow which is raised in the urban area and which is stall-fed will not be primary food. there was no case for the appellant in the complaint, in his evidence as pw. 1 or in the appeal memorandum that the butter was made from milk of cattle of the category mentioned in the above decision. ordinarily cattle get their sustenance from the soil and the contrary are only exceptions which are to be specifically alleged and proved. a contention of this sort appearing as a bolt from the blue for the first time at the time of arguments before the appellate court cannot be accepted and the accused cannot be allowed to be taken by surprise like that.in i.t......

Judgment:

S. Padmanabhan, J.

1. This Appeal by special leave was filed by the Food Inspector, who was the complainant in S.T. 14 of 1980 tried and disposed of by the Judicial Magistrate of the First Class, Alwaye, acquitting the accused-respondent.

2. The complaint was for an offence punishable under Section 16(1)(a)(i) read with Section 7(i) of the Prevention of Food Adulteration Act. The allegation is that the respondent exposed for sale adulterated deshi (cooking) butter. For deshi butter, according to the standards prescribed, there must be minimum 76 per cent milk fat. Ext. PI 1 report of the Public Analyst, on the basis of which the complaint was filed, showed that the sample contained only 70.2 per cent milk fat. Deficiency in milk fat alone is the item of adulteration. On the application of the respondent, one of the samples kept with the Local (Health) Authority was sent to the Central Food Laboratory and Ext. P14 report is to the effect that it contained only 70.9 per cent of milk fat. Even though the report of the Public Analyst was superseded by that of the Central Food Laboratory, the deficiency only got reduced, but it did not reach the prescribed standard.

3. Accepting the contention of the respondent that deshi butter is an item of primary food and that the deficiency in milk fat was solely due to natural causes and beyond the control of human agency, the Magistrate acquitted the respondent on the basis of the proviso to Section 2(ia)(m). Hence this appeal by the complainant,

4. The only question argued before me by either side was the applicability or otherwise of the said proviso and hence that is the only question I am going to consider. In other respects there was no dispute. There was no contention that sampling was not proper or that any of the provisions of the Act or Rules were not complied with. Therefore the decision on this appeal must depend solely on the applicability or otherwise of the proviso. Section 2(xii-a) defines primary food as any article of food, being a produce of agriculture or horticulture in its natural form. On two grounds the appellant contended that the sample in this case is not primary food (1) milk itself is not primary food and (2) deshi butter is not milk in its natural form and hence it is not primary food even if milk is taken as primary food.

5. On the first point support was claimed from the observations in Food Inspector, Ahmedabad v. Prabhatbai Punjabhai, 1981 FAJ 306 wherein the Gujarat High Court held that drawing of sustenance from the land for production of the article is an essential ingredient to treat it as produce of agriculture and hence each and every kind of milk secreted from a cow cannot be treated as primary food. It was further held that milk of a cow which was reared on the soil and which got its sustenance therefrom alone could form primary food and milk secreted from a cow which is raised in the urban area and which is stall-fed will not be primary food. There was no case for the appellant in the complaint, in his evidence as PW. 1 or in the appeal memorandum that the butter was made from milk of cattle of the category mentioned in the above decision. Ordinarily cattle get their sustenance from the soil and the contrary are only exceptions which are to be specifically alleged and proved. A contention of this sort appearing as a bolt from the blue for the first time at the time of arguments before the appellate court cannot be accepted and the accused cannot be allowed to be taken by surprise like that.

In I.T. Commr. v. Sundara Mudaliar : [1950]18ITR259(Mad) while discussing the scope of the term agriculture it was held that the word 'agricultural' applies to-the cultivation of the soil for food products or any other useful valuable growths of the field or garden and is wide enough to cover the rearing, feeding and management of the livestock, which live on the land and draw their sustenance from the soil. The above decision was quoted with approval by Subramonian Poti, J. (as he then was) in Food Inspector v. Abdul Khader, 1978 Ker LT 830 : 1979 Cri LJ 295 wherein it was held I at p. 297 of Cri LJ):

It is evident that the term produce of agriculture would take in not merely that which grows on the land but also that which lives on the land by sustenance from that which grows on land, namely, cattle. Taking note of the object and scheme of the Prevention of Food Adulteration Act, I see no reason to restrict the meaning of the term primary food to exclude milk. Milk is a produce of agriculture and is a primary food.

Therefore, the contention that milk is not an item of primary food cannot be accepted.

6. The next contention to be considered is whether deshi (cooking) butter involved in this case could be treated as produce of agriculture in its natural form. In this connection the respondent attempted to gain support from two decisions of this Court, Food Inspector v. Abdul Khader 1978 Ker LT 830 : 1979 Cri LJ 295 (already referred to) and State of Kerala v. Thankappan, 1982 Ker LT 343. Food Inspector's case, 1978 Ker LT 830 was relied on by the trial court also since that decision quoted Webster's Dictionary wherein agriculture was meant to include butter and cheese-making. But the question that was decided therein was only whether milk is an item of primary food. What is relevant for consideration in this case is not whether butter and cheese-making is agriculture, but whether butter is a produce of agriculture in its natural form. Food Inspector's case, 1978 Ker LT 830 : 1979 Cri LJ 295 has not decided that question and hence reliance on that decision will not be helpful in that respect.

7. In State of Kerala v. Thankappan, 1982 Ker LT 343 the question that came up for consideration was regarding natural form of primary food and it was held:

If the seed without its outer cover is food as defined and if it is a product of agriculture and if it still retains its natural form which it had within the covering, which had been removed, it is primary food. For example, paddy as such will not be food as defined in the Act. But after dehusking the rice that is obtained can certainly be considered to be primary food, because it retains its natural form, though the outer covering has been removed by dehusking it and it is an article of food and a produce of agriculture. For the same reason Vadapparippu and Thuvarapparippu can be considered to be primary food. These pulses when its outer covering is removed will be articles of food as well as products of agriculture. 'Form' has as per the Dictionary the meaning - relevant in the present context alone is quoted - 'shape, arrangement of parts, visible aspects (esp. apart from colour), shape of body - mode in which a thing exists or manifests itself.' Therefore, removal of the cover cannot be said to make a different shaping or different arrangement of the parts making it different from its natural form. The natural form is still retained.

That decision is also not helpful to the respondent. What was decided in that case was only that rice after dehusking paddy as well as Vadapparippu and Thuvarapparippu after removing their outer covering are primary food because they retain their natural form before undergoing the process of dehusking. In those cases what is involved is only removal of the outer cover while retaining the natural form which they had inside the cover. Removal of the outer cover is necessary to make them items of food capable of human consumption as with the covering they cannot be consumed. Relying on the dictionary meaning of 'form' it was held to include 'shape, arrangement of parts, visible aspects, shape of body - mode in which a thing exists or manifests itself etc. Removal of cover was held not to make a different shape or different arrangement of the parts making it different from its natural form.

8. The position here is different. Whether the item is deshi (cooking) butter which is home made or not and whether it is table butter or not, it cannot be said to be milk in its natural form and as such primary food in its natural form. Whether after undergoing the process of boiling or not cream is taken out of the milk to form butter. As per appendix B schedule of the Prevention of Food Adulteration Rules, as item A.11.01.01 milk is defined as the secretion derived from complete milking of healthy milch animals, which shall be free from colosturm. As item A.11.01.10 skimmed milk means the product prepared from milk from which almost all the milk fat has been removed mechanically. For cow milk the standards of minimum milk fat and milk solids not fat prescribed are respectively 3.5 and 8.5 per cent. As item A. 11.02.19, Table (Creamery) Butter means the product obtained from cow or buffalo milk or a combination thereof from cream or curd obtained from cow or buffalo milk etc.

Likewise Deshi (Cooking) Butter is also defined as a product obtained from milk. It is clear from the above definitions as well as from common knowledge that butter whether it is table butter or deshi butter is only a product manufactured from milk by human agency. For manufacturing butter a portion of the milk namely the milk fat alone is taken out leaving the rest. In the mechanical process of removing the milk fat to make butter what remains is only skimmed milk. For home made butter to be made if m-ilk is boiled and fermented what remains after making butter is curd and water. For Table butter the standards prescribed are 80.0 per cent by weight of milk fats, not more than 1.5 percent by weight of curd etc. For Deshi butter milk fat should be not less than 76.0 per cent by weight. It is evident that butter cannot be said to be milk in its natural form. It is only a product obtained from milk by intervention of human agency. For cow milk, the milk fat prescribed is only 3.5% whereas for deshi butter it is 76%. No decision of the Kerala High Court or Supreme Court was cited by either side before me in this respect, but the appellant sought support from 1981 FAJ 306 wherein it was held:

In this sense, as per the definition as it appears in the Act, butter which may be prepared in the farm itself from cream taken out of milk secreted from a cow reared on the field will not fall within the category of produce of agriculture in its natural form and it will only be the milk secreted from such animal which will fall within that category.

Even DW. 1 admitted that Deshi butter is made at home by first preparing curd out of milk and then churning the curd to take out butter. Therefore whether the sample is table butter or deshi butter and whether it is home made or not will not make any difference and it cannot be treated as primary food in the sense that it is a produce of agriculture in its natural form. It cannot have any analogy with dehusked rice or pulses.

9. If so, there is no question of the proviso to Section 2(ia)(m) of the Prevention of Food Adulteration Act being made applicable. The proviso reads thus:

If the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits or variability but which does not render it injurious to health:

Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then such article shall not be deemed to be adulterated within the meaning of this sub-clause.

Explanation. - Where two or more articles of primary food are mixed together and the resultant article of food -

(a) is stored, sold or distributed under a name which denotes the ingredients thereof; and

(b) is not injurious to health, then, such resultant article shall not be deemed to be adulterated within the meaning of this clause;

There is no question of considering that the quality or purity having fallen below the prescribed standards or the constituents being present in the quantities not within the prescribed limits of variability solely due to natural causes and beyond the control of human agency and as such treating the sample as not adulterated. If so, there is also no question of considering how far the respondent was able to discharge the burden of proving that the variation in standard was solely due to natural causes and beyond the control of human agency.

10. D. W. 1 was examined as an Expert. He is Associate Professor of Dairy Science in the Veterinary College, Mannuthy and holder of Master's Degree and Doctorate in Dairy Science. He said that in Deshi Butter which is home made, it is impossible to eliminate completely the presence of curd arid moisture contents. But that is beside the point here. The absence of animal fats, wax and mineral oils, vegetable oils and fats only shows that it was not adulterated by adding any prohibited material. While Table butter has to contain not less than 80% by weight of milk fats a little laxity is shown to Deshi butter and it need contain only not less than 76% by weight of milk fat. Even according to Ext. P14, the milk fat is only 70.9% by weight. Standards are prescribed after taking all the aspects into consideration and they are intended to be strictly followed. It has to be noted that this is an offence for which no mens rea is required. Whatever be the reason for the variation in the standard the article is adulterated and its sale is an offence.

The prosecution evidence regarding compliance of the provisions of the Act and Rules is not in dispute. Whether the sample is adulterated by addition of any prohibited substance or not and whether consumption of the sample is injurious to life or health are matters beside the point in finding the accused guilty when the item is found to be adulterated. The finding of the trial court that the sample is not adulterated has to be set aside for reasons mentioned above and I do so. The result is that the acquittal is set aside and the respondent is found guilty of having committed an offence punishable under Section 16(1)(a)(i) read with Section 7(i) of the Prevention of Food Adulteration Act and he is convicted accordingly.

11. This is an offence for which a minimum punishment is prescribed. In the matter of sentence, the only contention raised was that being home made butter, it was impossible to eliminate moisture and cured completely as spoken to by D.W.1 and there was no prohibited substance injurious to human health. This cannot be taken as a circumstance at all in the matter of sentence. Therefore the respondent is sentenced to undergo simple imprisonment for a term of six months and to pay a fine of Rs. 1,000/- and in default to undergo simple imprisonment for a period of one month more. The Magistrate will take steps to execute the sentence.